Chinese Hacker Charges a Rare Melding of Prosecution and Diplomacy

Carl von Clausewitz famously said that war is the continuation of politics by other means. So, apparently, is an indictment.

The hacking charges leveled against five Chinese military workers are a legally unusual attempt by America to punish a foreign power using the U.S. criminal justice system instead of diplomatic, political or military channels, say legal experts.

Under international law, a state may take countermeasures to punish another country for wrongful acts. In limited cases, a country may also prosecute a foreign national for committing a crime that's planned or carried out outside its borders.

The charges that the U.S. Department of Justice filed against five individuals in the Chinese military represent a rare melding of these two legal avenues.

"It's a diplomatic move as much as it is a prosecutorial one," said Temple University law professor Duncan B. Hollis, a specialist on international and foreign affairs law.

"Instead of saying to China directly, 'We think you're violating international law by your cyberespionage,' we're using the criminal justice system instead," he told Law Blog.

Legal scholars say the Justice Department appears to be perfectly within its rights to bring the charges.

"The fact that the operations may have been launched from China by members of the People's Liberation Army doesn't deprive the U.S. of jurisdiction [over these individuals]," Michael N. Schmitt, the director of the Stockton Center for the Study of International Law at the U.S. Naval War College, told Law Blog.

International law allows a state to prosecute foreign individuals for conduct committed beyond its borders if the alleged actions have a "substantial" effect within its territory. Federal prosecutors could argue that was the case here because the victims of the alleged cybercrime were U.S. companies and a labor union.

It's highly unlikely, though, that China would ever turn over the accused military to stand trial. But the indictment achieves other objectives, says Mr. Hollis.

Initially, the Obama administration had sought to apply increasing public pressure in China to cease its cyberespionage against U.S. companies, note WSJ's Devlin Barrett and Siobhan Gorman.

But after last year's disclosures by former National Security Agency contractor Edward Snowden, the Chinese made it clear that they "weren't terribly sympathetic to U.S. complaints of cyber-espionage," said Mr. Hollis.

Post the Edward Snowden controversy, according to Mr. Hollis, the U.S. has struggled to make other countries see the distinction between government hacking intended to protect national security and industrial or economic hacking of the likes alleged against China. "This prosecution is a political effort to try to do that," Mr. Hollis said.

China's Foreign Ministry dismissed the indictment as groundless and demanded its withdrawal. "This US move, which is based on fabricated facts, grossly violates the basic norms governing international relations and jeopardizes China-US cooperation and mutual trust," spokesman Qin Gang said in a statement posted to the ministry's website.